In the Supreme Court of the United States

Transcription

1 Nos and In the Supreme Court of the United States WILLIAM CRAWFORD, ET AL., PETITIONERS v. MARION COUNTY ELECTION BOARD, ET AL. INDIANA DEMOCRATIC PARTY, ET AL., PETITIONERS v. TODD ROKITA, INDIANA SECRETARY OF STATE, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENTS PAUL D. CLEMENT Solicitor General Counsel of Record GRACE CHUNG BECKER Acting Assistant Attorney General GREGORY G. GARRE Deputy Solicitor General DOUGLAS HALLWARD-DRIEMEIER Assistant to the Solicitor General DIANA K. FLYNN CHRISTY A. MCCORMICK Attorneys Department of Justice Washington, D.C (202)

2 QUESTION PRESENTED Whether an Indiana statute mandating that those seeking to vote in person produce a government-issued photo identification on its face violates the First and Fourteenth Amendments to the Constitution. (I)

3 TABLE OF CONTENTS Page Interest of the United States... 1 Statement... 2 Summary of argument... 8 Argument I. Petitioners have failed to show that the Voter ID Law is invalid on its face II. The Voter ID Law is a reasonable administrative rule that furthers the State s compelling interest in combating voter fraud A. States have broad authority to establish rules to ensure the integrity of elections B. Because the Voter ID Law is neither discriminatory nor a severe burden on the franchise, heightened scrutiny is unwarranted The Voter ID Law does not discriminate with respect to the right to vote The Voter ID Law does not impose a severe burden on the right to vote C. The Voter ID Law serves the State s compelling interest in preserving the integrity of the electoral process III. HAVA s identification requirements do not preempt Indiana s Voter ID Law Conclusion (III)

4 IV Cases: TABLE OF AUTHORITIES Page Anderson v. Celebrezze, 460 U.S. 780 (1983)... 9, 19 Ayotte v. Planned Parenthood, 546 U.S. 320 (2006). 13, 16 Broadrick v. Oklahoma, 413 U.S. 601 (1973) Bullock v. Carter, 405 U.S. 134 (1972) Burdick v. Takushi, 504 U.S. 428 (1992)... passim Carrington v. Rash, 380 U.S. 89 (1965) City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) City of Mobile v. Bolden, 446 U.S. 55 (1980) Clements v. Fashing, 457 U.S. 954 (1982) Common Cause/Ga. v. Billups, 504 F. Supp. 2d 1333 (N.D. Ga. 2007) Cutter v. Wilkinson, 544 U.S. 709 (2005) Eu v. San Francisco County Democratic Comm., 489 U.S. 214 (1989) FEC v. National Right to Work Comm., 459 U.S. 197 (1982) Foti v. McHugh, No , 2007 WL (9th Cir. Aug. 28, 2007) Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929 (2007) Gonzalez v. Arizona, 485 F.3d 1041 (9th Cir. 2007) Gonzalez v. Carhart, 127 S. Ct (2007) Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)... 26

5 V Cases Continued: Page Harris v. McRae, 448 U.S. 297 (1980) Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969).. 24 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959) Mason v. Missouri, 179 U.S. 328 (1900) Massachusetts v. Oakes, 491 U.S. 576 (1989) McDonald v. Board of Election Commr s, 394 U.S. 802 (1969) Munro v. Socialist Workers Party, 479 U.S. 189 (1986) New York v. Ferber, 458 U.S. 747 (1982) Norman v. Reed, 502 U.S. 279 (1992) Pabey v. Pastrick, 816 N.E.2d 1138 (Ind. 2004)... 3 Personnel Adm r v. Feeney, 442 U.S. 256 (1979) Purcell v. Gonzalez, 127 S. Ct. 5 (2006)... 18, 28 Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1996) Reynolds v. Sims, 377 U.S. 533 (1964)... 18, 28 Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982) Rust v. Sullivan, 500 U.S. 173 (1991) Sabri v. United States, 541 U.S. 600 (2004)... 12, 13 United States v. Raines, 362 U.S. 17 (1960)... 12, 13, 14 United States v. Salerno, 481 U.S. 739 (1987). 10, 11, 16, 17 Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S )... 11, 12

6 VI Cases Continued: Page Virginia v. Hicks, 539 U.S. 113 (2003) Warth v. Seldub, 422 U.S. 490 (1975)... 12, 13 Washington v. Davis, 426 U.S. 229 (1976) Wisconsin v. City of New York, 517 U.S. 1 (1996) Constitution, statutes and regulations: U.S. Const.: Art. I, 4, Cl Amend. I Amend. XIV Help America Vote Act of 2002, Pub. L. No. 252, 116 Stat (42 U.S.C et seq.) U.S.C (a)(4)(A) (Supp. IV 2004) U.S.C (a)(5)(A) (Supp. IV 2004)... 2, 3 42 U.S.C (b) (Supp. IV 2004) U.S.C (b)(1)-(4) (Supp. IV 2004) U.S.C (b)(2)(A) (Supp. IV 2004)... 2, 3 42 U.S.C (b)(2)(A)(i)(II) (Supp. IV 2004) 17, U.S.C (b)(3)(A) (Supp. IV 2004)... 2, 3, U.S.C (Supp. IV 2004)... 3, 10, U.S.C (Supp. IV 2004) U.S.C (Supp. IV 2004)... 2 National Voter Registration Act of 1993, 42 U.S.C. 1973gg et seq U.S.C. 1973gg(b)(1) U.S.C. 1973gg(b)(3) U.S.C. 1973gg-3(a)(1)... 2

7 VII Statutes and regulations Continued: Page 42 U.S.C. 1973gg-3(c)(2)(B)(ii) U.S.C. 1973gg-4(c)(1)(A) U.S.C. 1973gg-4(c)(1)(B) U.S.C. 1973gg-7(b)(1) U.S.C. 1973gg U.S.C. 1973gg-10(c)... 2 Voting Rights Act of 1965, 42 U.S.C et seq.: 42 U.S.C. 1973i(c) U.S.C. 1973i(e)... 2 Pub. L. No , 4, 2005 Ind. Acts Pub. L. No , 2005 Ind. Acts Ind. Code: (a) (c) (d) (2) (c) (d) (e) (a)(3)-(5) (a)(4) (a)(5)... 25

8 VIII Statutes and regulations Continued: Page (a) (c) (c) (b) C.F.R.: Section 1274a.2(b)(1)(i) Section 1274a.2(b)(1)(v) Miscellaneous: R. Michael Alvarez et al., CalTech/MIT Voting Technology Project, Working Paper #57, Version 2 (Oct. 2007) < edu/media/documents/wps/vtp_wp57.pdf> Commission on Federal Election Reform, Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform (2005) < full_report.pdf> Cong. Reg. (2002): p. 20, p. 20, p. 20, Memorandum from Dale Simmons and Cody Kendall, Co-Counsels, Ind. Election Div., to J. Bradley King and Kristi Robertson, Co-Directors, Ind. Election Div., regarding Photo ID Interpretations (May 1, 2006) < PhotoIDAdvisory_4_30_06.pdf>... 5, 16

9 IX Miscellaneous Continued: Page Jeffrey Milyo, The Effects of Photographic Identification on Voter Turnout in Indiana: A County-Level Analysis, Report (Nov. 2007) < missouri.edu/uploads/publications/ report% pdf>... 2, 16 Todd Rokita, Ind. Sec y of State, PhotoID.IN.gov: Are There Exemptions? < photoid/exemptions.html>... 6, 15, 16 United States Election Assistance Comm n, EAC Advisory : Provisional Voting and Identification Requirements (2005) < advisories%20and%20guidance/ EAC%20Advisory% %20 Provisional%20Voting.pdf>... 32

10 In the Supreme Court of the United States No WILLIAM CRAWFORD, ET AL., PETITIONERS v. MARION COUNTY ELECTION BOARD, ET AL. NO INDIANA DEMOCRATIC PARTY, ET AL., PETITIONERS v. TODD ROKITA, INDIANA SECRETARY OF STATE, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENTS INTEREST OF THE UNITED STATES This case concerns a facial challenge to a state law that requires those who vote in person in federal elections to present a government-issued photo identification and, more generally, the appropriate constitutional standard for reviewing such a law. Congress has enacted numerous requirements, including registration and identification requirements, designed to increase (1)

11 2 the number of eligible citizens who register to vote while simultaneously protect[ing] the integrity of the electoral process. 42 U.S.C. 1973gg(b)(1), (3). In 2002, Congress enacted the Help America Vote Act of 2002 (HAVA), Pub. L. No , 116 Stat (42 U.S.C et seq.), to establish and modernize various minimum election administration standards for federal elections. Among other things, HAVA requires voters to provide proof of identification before registering or casting their first ballot, see 42 U.S.C (a)(5)(A), (b)(2)(a), (3)(A). The Attorney General is responsible for enforcing those provisions. 42 U.S.C. 1973gg-9, The Attorney General also has authority to prosecute voter fraud in federal elections. See, e.g., 42 U.S.C. 1973i(c), (e), 1973gg-10(c). STATEMENT 1. In 1993, Congress enacted the National Voter Registration Act of 1993 (NVRA), 42 U.S.C. 1973gg et seq. One of the Act s purposes was to increase the number of eligible citizens who register to vote. 42 U.S.C. 1973gg(b)(1). The NVRA facilitated voter registration by, among other things, requiring that state motor vehicle driver s license applications also serve as voter registration applications. 42 U.S.C. 1973gg-3(a)(1). At the same time, Congress emphasized the need to protect the integrity of the electoral process. 42 U.S.C. 1973gg(b)(3). Thus, the NVRA authorizes States to require information necessary to assess the eligibility of the applicant. 42 U.S.C. 1973gg-3(c)(2)(B)(ii), 1973gg-7(b)(1). The Act also specifies that States may require individuals who have submitted their voter registration by mail to vote in person the first time they vote. 42 U.S.C. 1973gg-4(c)(1)(A), (B).

12 3 In 2002, Congress enacted HAVA. HAVA requires States to maintain accurate statewide voter registration lists, by making a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible voters. 42 U.S.C (a)(4)(A). In addition, HAVA requires States to verify the voter registration information of new registrants. 42 U.S.C (a)(5)(A), (b)(1)-(4). A State must require a person who submits a voter registration by mail to submit, either as part of the registration or the first time the individual votes, proof of identity. Ibid. Acceptable forms of identification under HAVA are a current and valid photo identification or a current utility bill, bank statement, government check, paycheck, or government document that shows the name and address of the voter. 42 U.S.C (b)(2)(A), (3)(A). HAVA specifies that States may establish more strict standards that are not inconsistent with the federal law s minimum requirements, 42 U.S.C Indiana determined that it faced a serious problem of actual and potential election fraud. In 2004, the Indiana Supreme Court invalidated the 2003 East Chicago mayoral primary based on evidence of rampant absentee-ballot fraud, which included the use of vacant lot or former addresses and casting of ballots by nonresidents. Pabey v. Pastrick, 816 N.E.2d 1138, 1145, The Indiana Supreme Court found that the widespread fraud had rendered the election results inherently deceptive and unreliable. Id. at At the same time, the State was experiencing highly inflated voter registration rolls, thus creating a risk of further voter fraud. Indeed, a report shows that more than 35,000 deceased individuals were on the rolls Statewide, and that, in 2004, the list of registered voters was

13 4 inflated by some 41%, including well over 200,000 duplicate voter registrations Pet. App. 40 (Pet. App.). On April 7, 2005, the United States Department of Justice informed the Indiana Secretary of State that numerous counties had registration totals that exceeded their voting age populations and noted the State s obligations under federal law to maintain accurate voter registration lists. J.A Shortly thereafter, Indiana responded to those and other concerns by enacting a number of election reforms. In particular, Indiana enacted Senate Enrolled Act No. 483 (Voter ID Law), Ind. Pub. L. No , 2005 Ind. Acts 2005, which, in order to deter voter fraud, requires those who vote in-person to present photo identification, issued either by the United States or Indiana. See Ind. Code (c) and ; Pet. App On the same day, the legislature also placed new restrictions on absentee voting and the handling of absentee ballots. Ind. Pub. L. No , 2005 Ind. Acts 1948; Ind. Code (c), (d). Under the Voter ID Law, an acceptable ID must contain the photograph and name of the individual to whom it was issued, which must conform to that on the registration rolls. The ID must also have an expiration date and be either unexpired or have expired after the most recent general election. See Ind. Code Numerous forms of identification may qualify, including an Indiana driver s license, a non-license photo identification issued by the State s Bureau of Motor Vehicles (BMV), a student ID issued by a State-sponsored college 1 The United States Department of Justice brought suit against the State for violating the NVRA s requirements regarding the removal of ineligible voters from the voter registration list. J.A That suit was resolved through a consent decree. J.A

14 5 or university, a passport, or military ID. See Dale Simmons and Cody Kendall, co-counsels, Indiana Election Division, Photo ID Interpretations 3-4 (2006) (Photo ID Interpretations) < pdfs/photoidadvisory_4_30_06.pdf>. Indiana provides alternatives for those who do not already possess an acceptable ID. The State will provide, free of charge, a photo ID that satisfies the requirements to any individual who will be at least 18 years of age at the next election and does not have a valid Indiana driver s license. See Ind. Code (b). To obtain a photo ID, the BMV requires firsttime applicants to produce one primary document (such as a certified birth certificate or certain immigration documents), one secondary document (such as non-photo government documents, bank statements, school documents, or credit card statements), and one proof of Indiana residency; or two primary documents and one proof of Indiana residency. Pet. App For certain voters, state law provides ways for those individuals to vote without producing photo identification. Those who are over 65, disabled, or confined by illness or injury may cast an absentee ballot by mail. See Ind. Code (a)(3)-(5). Indiana s photo ID law does not apply to absentee balloting by mail. See id , ; Pet. App The Voter ID Law also does not apply to individuals who vote in person at a precinct polling place that is located at a state licensed care facility where the voter resides. Ind. Code (e). See Pet. App A voter casting an absentee ballot by mail the first time that person votes after having registered to vote by mail may be required to present identification pursuant to HAVA. See 42 U.S.C (b).

15 6 Those who object to having their pictures taken on religious grounds or do not have and cannot afford to obtain the necessary documentation may execute affidavits regarding their status and cast their ballots without presenting a photo ID. Ind. Code (c); Pet. App State law allows such individuals to vote without presenting an ID in either of two ways. First, such voters may exercise the right of any Indiana voter to vote an absentee ballot in person at the office of the circuit court clerk or board of elections on any date between 29 days and one day before the election. See Ind. Code (a), (a), (c). Voters who choose to do so may file an absentee application, cast their ballot, and sign an affidavit of indigency or religious objection on a single trip to the local election office. See id (2), (c); < exemptions.html>. Second, any voter who appears at the polls without the requisite identification, either because an exemption applies or because the person does not have an ID in his or her possession at the time, may cast a provisional ballot. See Ind. Code (d). A provisional ballot will be counted so long as the voter appears before the circuit court clerk or the county election board no later than ten days following the election, and executes an affidavit that he or she is the same person who cast the provisional ballot, and either: (a) presents acceptable photo identification; or (b) executes an affidavit of indigency or religious objection. Ind. Code ; (c); Pet. App If the county election board rejects the ballot, the individual may obtain judicial review in the local circuit court. Ind. Code Two different plaintiff groups the Indiana Democratic Party and the Marion County Democratic Cen-

16 7 tral Committee; and two elected officials, along with several nonprofit organizations, including the Indianapolis Branch of the NAACP, the United Senior Action of Indiana, the Indianapolis Resource Center for Independent Living, and Concerned Clergy of Indianapolis brought suit alleging that the Voter ID Law violates the First and Fourteenth Amendments to the Constitution because it imposes an unwarranted burden upon the right to vote. On April 14, 2006, the district court granted summary judgment in favor of the State, holding that the Voter ID Law is a permissible time, place, and manner restriction on voting. Pet. App The district court stressed that petitioners had failed to introduce[] evidence of a single, individual Indiana resident who will be unable to vote as a result of [the Voter ID Law,] or who will have his or her right to vote unduly burdened by its requirements. Pet. App. 18. The court found that petitioner s expert report, which attempted to estimate the number of Indiana registered voters without a BMV-issued photo ID by comparing the voter registration rolls and BMV records in Marion County, was utterly incredible and unreliable and reflected a conscious effort * * * to report the largest possible number of impacted individuals. Id. at To the extent that it shed any credible light on the matter, the court found that petitioners report actually supported the State s position that its law had no potential disparate impact * * * based on a voter s race or education level, and that to the extent [the report] is accurate, [it] actually indicates that voters without photo identification are not significantly more likely to come from low income segments of society. Id. at 70, The court of appeals affirmed. Pet. App The court concluded that the Voter ID Law was not sub-

17 8 ject to strict scrutiny because the record at most revealed only a slight effect of eligible voters disenfranchis[ing] themselves, and that negligible concern was outweighed by the State s interest in combating voting fraud. Id. at 6-7. Furthermore, the court observed that the State was free to take preventive action to deter voter fraud and, with it, the dilution of legitimate votes. Id. at 8. Judge Evans dissented. He would have subjected the Voter ID Law to strict scrutiny or at least strict scrutiny light, Pet. App. 11, and concluded that the law failed that test, see id. at A petition for rehearing en banc was denied, with four judges dissenting. Pet. App SUMMARY OF ARGUMENT The court of appeals correctly held that petitioners have not carried the heavy burden of showing that the Voter ID Law is invalid on its face. I. This Court requires a particularly demanding showing in facial challenges because such attacks run counter to numerous principles of judicial restraint: prudential standing, ripeness, and invalidating no more of a legislature s enactment than necessary. Petitioner s facial challenge to the Voter ID Law raises all of those concerns. Indeed, petitioners have failed to identify a single individual in Indiana who would vote if, but only if, the Voter ID law were invalidated. And, as the district court found, petitioners have utterly failed to show that the Voter ID law has had a discriminatory impact on any segment of society. Invalidating the Indiana law on its face would therefore require this Court to invert the analysis that it customarily applies to facial challenges, in which a law is constitutional unless there are

18 9 no circumstances in which it can be constitutionally applied. II. In any event, the Voter ID Law clearly satisfies the inquiry established by this Court for reviewing the constitutionality of election laws. Because any election regulation necessarily imposes some burden on voters exercise of the franchise, the Court has rejected the argument that a law that imposes any burden upon the right to vote must be subject to strict scrutiny. Burdick v. Takushi, 504 U.S. 428, 432 (1992). Instead, when a state election law provision imposes only reasonable, nondiscriminatory restrictions on voting, the State s important regulatory interests are generally sufficient to justify the restrictions. Id. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). Petitioners have failed to demonstrate that the Voter ID law imposes a severe burden on the right to vote. Photo ID requirements are ubiquitous in American society today. For the 99% of voters in Indiana who already have a photo ID, the law requires no more than that the voter present the ID at the polls. For the less than 1% of Indiana voters who do not yet have an ID, the State offers them such an ID free of charge. And for those who are most likely to find it difficult to obtain even a free ID, State law provides alternative methods of voting that do not require presenting identification. Because petitioners have not shown that the Voter ID law imposes a severe burden on the right to vote, it is subject to more generous review under the Burdick balancing analysis. Any burden that is imposed by the Voter ID law is more than justified by the State s interest in combating in-person voter fraud. Voter fraud itself constitutes an

19 10 impairment of the right to vote. In a close race, even a handful of fraudulent votes could invalidate the entire election, as has happened in Indiana. Moreover, the well-publicized fact of voter registration lists with fraudulent, deceased, or otherwise invalid names undermines the public confidence in the electoral process that is the lifeblood of democratic institutions. Particularly given that in-person voter fraud is difficult to detect without rigorous ID requirements and that as a practical matter it is important for the State to deter, not just detect and punish, voter fraud, the State has amply demonstrated its interest in passing its Voter ID law. III. HAVA does not preempt the Voter ID Law. HAVA explicitly states that its requirements do not prevent States from adopting administrative requirements that are more strict than HAVA s. 42 U.S.C While Indiana s ID requirement is more strict than HAVA s, it is in no way inconsistent with the Federal requirements. Ibid. A contrary interpretation would deprive the States of the flexibility that Congress intended to preserve under HAVA in enacting laws that would modernize and improve the electoral process as our democracy enters the 21st century. ARGUMENT Petitioners elected to bring a facial challenge to Indiana s Voter ID law, and to bring such an action before the statute had ever been implemented in practice. Such a challenge is the most difficult challenge to mount. United States v. Salerno, 481 U.S. 739, 745 (1987). Petitioners facial challenge is fatally undercut by the undisputed fact that they have failed to identify a single individual in Indiana whose ability to vote depends on that law. In light of that fact, petitioners challenge flunks

20 11 any reasonable formulation of this Court s standard for evaluating facial constitutional challenges to legislative acts. Petitioners would avoid that conclusion by having this Court revamp the settled framework for evaluating First Amendment challenges to election laws and hold that a law that imposes any burden on the right to vote indeed, as in this case, even a hypothetical one subjects a law to strict scrutiny. This Court rejected precisely such a proposal in Burdick, 504 U.S. at 432, and petitioners provide no reason for the Court to reverse course here. Any individual is free to bring an asapplied challenge to Indiana s Voter ID Law grounded in their particular circumstances or actual experience and attempt to demonstrate that the law imposes an unconstitutional burden on his or her right to vote. But the court of appeals properly rejected petitioners facial challenge to the Voter ID Law on the record here. I. PETITIONERS HAVE FAILED TO SHOW THAT THE VOTER ID LAW IS INVALID ON ITS FACE A. The only question presented for the Court s review is the constitutionality of the Voter ID Law on its face. See Dem. Br. i; Crawford Br. i. This Court long ago explained that [a] facial challenge to a legislative Act is * * * the most difficult challenge to mount. Salerno, 481 U.S. at 745. The fact that [a statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid. Ibid. Rather, in the typical case, to succeed in a facial challenge, the challenger must establish that no set of circumstances exists under which the Act would be valid. Ibid. See Village of Hoffman Estates

21 12 v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982). 3 The rule disfavoring facial invalidation is animated by several related principles of judicial restraint. First, as a matter of prudential standing, a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. New York v. Ferber, 458 U.S. 747, 767 (1982); Warth v. Seldin, 422 U.S. 490, 499 (1975); United States v. Raines, 362 U.S. 17, 21 (1960). Second, facial invalidation raises ripeness concerns because it invites premature interpretatio[n] of statutes on the basis of factually barebones records. Sabri v. United 3 Although the Court has recognized that [t]he First Amendment doctrine of overbreadth is an exception to [the] normal rule regarding the standards for facial challenges, Virginia v. Hicks, 539 U.S. 113, 118 (2003), petitioners invocation of the First Amendment as a source of their constitutional claims, Dem. Br. 1, 44; Crawford Br. 2, does not bring them within that exception. The overbreadth doctrine has been applied only where its effect might be salutary, Massachusetts v. Oakes, 491 U.S. 576, 582 (1989) (plurality opinion), such as, for example, where threat of enforcement of a law that punishes * * * protected free speech, especially one that imposes criminal sanctions, may deter or chill the speech, and individuals cannot be expected to undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case adjudication. Hicks, 539 U.S. at The Voter ID Law does not threaten to punish anyone, and there is no risk to an individual (or association with standing to represent that individual) who challenges the law as applied to their circumstances. Moreover, the ability to cast a provisional ballot means even someone unsure of the law need not suffer any loss of voting rights. In any event, to the extent the doctrine applies, petitioners inability to identify a single individual who is unable to vote as a result of the Voter ID Law fatally undercuts any suggestion of overbreadth here.

22 13 States, 541 U.S. 600, 609 (2004) (quoting Raines, 362 U.S. at 22). Third, facial invalidation conflicts with the Court s practice not to nullify more of a legislature s work than is necessary. Ayotte v. Planned Parenthood, 546 U.S. 320, 329 (2006). Relatedly, a facial challenge short-circuits the process by which potential constitutional questions are avoided when a statute is narrowed through the course of its application. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). B. Petitioners facial challenge to the Voter ID Law highlights all of those concerns. 1. As respondents have explained, serious questions exist regarding petitioners constitutional standing to bring this suit at all. See Resp. Br Petitioners suit also implicates prudential standing concerns because of the significant divergence between the facts on which petitioners base their claims of standing and the types of injuries they highlight in their broad attack on the Voter ID Law. Cf. Warth, 422 U.S. at 499 ( the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on legal rights or interests of third parties ). For example, whereas the Democratic Party of Indiana asserts associational standing to represent individuals affiliated with the party, Dem. Br , each of the individual voters the party identified as being burdened by the law and who consented to representation by the party is over 65 years of age and therefore has a right under Indiana law to vote absentee by mail, without producing a photo ID. See Pet. App ; p. 5, supra. Those voters, because they have that option, would seem to have a markedly weaker claim. Indeed, the party s argument with respect to the constitutional adequacy of that alternative voting method is confined to a footnote, see Dem. Br. 32

23 14 n.17, and the party instead focuses its argument on those who simply cannot vote or who will not * * * successfully complete all the steps needed to vote. Id. at 23; see id. at Yet, the party was unable to identify any such individual, much less one who it could represent through associational standing. See Pet. App Similarly, the individual plaintiffs themselves have failed to demonstrate that they have been directly injured by the Voter ID law. See Resp. Br Petitioners inability to identify any concrete harms stemming from the Voter ID Law renders petitioners arguments largely theoretical and speculative. Petitioners failed to identify any individual who would not vote as a result of the statute, Pet. App , 94; id. at 5, and rely instead on their mere assertion that there can be no doubt that these people exist. Dem. Br. 59; Crawford Br. 26, 27, 32, 37 ( the Indiana law will deter some people from voting (quoting the court of appeals opinion, Pet. App. 3)). But, as this Court has stressed, [t]he delicate power of pronouncing an [act] unconstitutional is not to be exercised with reference to hypothetical cases thus imagined. Raines, 362 U.S. at 22. See McDonald v. Board of Election Commr s, 394 U.S. 802, 808 (1969) ( Faced as we are with a constitutional question, we cannot lightly assume, with nothing in the record to support such an assumption, that [a statute] has in fact precluded [petitioners] from voting. ). The abstract quality of petitioners challenge is exacerbated by their decision to attack the statute before it went into effect. Without any experience under the statute, petitioners premised their challenge on an expert s statistical analysis of registration rolls and BMV records. But the district court found that report to be utterly incredible and unreliable. Pet. App. 60. And,

24 15 in any event, the report revealed no potential disparate impact * * * based on a voter s race or education level and only a small potential disparate impact based on income level. Id. at 70. Having failed to provide proof of a burden on voting in the district court, petitioners now ask this Court to decide the constitutionality of the Voter ID Law on the basis of reports that post-date the district court ruling and have never been subjected to cross-examination or peer review. See, e.g., Dem. Br. xiv-xvi (citing no fewer than 11 publications that postdate the district court decision); id. at (citing October 2007 working paper as evidence that Indiana s law placed significant burdens on voters (quotation marks omitted)); id. at 12 (citing November 2006 report as evidence regarding incidence of lack of identification); Crawford Br. 15, 40 n.19, 41 n.20 (same). As we discuss below, see p. 22, infra, an even more recent unpublished study that focuses exclusively on Indiana s experience points in the opposite direction. But, more fundamentally, such speculation and as-yet untested evidence cannot satisfy the standard for proving a statute facially unconstitutional. The premature nature of petitioners challenge has also caused them and their amici to posit constructions of the Voter ID Law that are contrary to the State s own interpretation and application of the statute. For example, the Democratic Party repeatedly asserts (Dem. Br. 11, 16) that indigent persons without identification and those with religious objections may not execute affidavits to that effect before the election, at the same time the individual casts an in-person absentee ballot. See also Lawyers Comm. Br. 27 (same). But the State s published guidance is to the contrary. See < /sos/photoid/exemptions.html>. Likewise, the League

25 16 of Women Voters suggests (Br ) that recently married individuals, or others whose IDs vary slightly from the names on the rolls, will be rejected because the names do not conform, but the Indiana Election Division s Guidance says otherwise. Photo ID Interpretations The remedy petitioners seek facial invalidation of the Voter ID law also bears no relation to the constitutional harms petitioners assert. If, as petitioners contend, it is unconstitutional to require a homeless person to vote absentee in person (or at the polls with subsequent validation by affidavit) because he is unable to obtain a BMV-issued ID (see, e.g., Crawford Br. 18 (citing case of Kristjan Kogerma, J.A. 67), then a narrower remedy would be to enjoin the BMV from denying an ID on the ground that a person has no address, or to enjoin the IDOH from collecting a search fee for a birth certificate in that circumstance. Such challenges should await actual circumstances in which those difficulties may or may not arise. But at a minimum, as the Court reiterated in Ayotte, courts should enjoin only the unconstitutional applications of a statute while leaving other applications in force. 546 U.S. at 329. C. Petitioners not only have not identified a single individual who would be unable to vote because of the Voter ID Law, but they make no serious argument that the Voter ID Law imposes an unconstitutional burden on the more than 99% of Indiana voters who already possess an ID that satisfies the statutory requirements. Accordingly, instead of attempting to carry the heavy burden, Rust v. Sullivan, 500 U.S. 173, 183 (1991), to establish that no set of circumstances exists under which the Act would be valid, Salerno, 481 U.S. at 745, petitioners effectively ask this Court to invert the set-

26 17 tled inquiry and hold that the Voter ID Law must be struck down in toto [e]ven if only a single citizen is deprived completely of her right to vote. Dem. Br. 33 (emphasis added; brackets in original) (quoting dissent from denial of rehearing, Pet. App. 154); see Crawford Br. 37 (focusing on the burdens on individual voters ); id. at 38 ( [t]hat Indiana s photo identification law may affect few voters is irrelevant ). That argument not only has no footing in this Court s case law, but could have an extraordinary impact on election laws. For example, although the Democratic Party suggests that HAVA s ID requirement (see p. 3, supra) is a valid example of an acceptable less-restrictive voteridentification rule[], Dem. Br , 51, petitioners theory of the case that an election law is invalid if one can hypothesize any single individual who would be prevented from voting by the burden it creates would cast serious doubt on the constitutionality of HAVA as well. HAVA s ID requirements pose no serious obstacle to the 99% of the population with photo IDs or alternative means of proving their residence and identification. But one can just as easily hypothesize a theoretical individual who would be prevented from registering to vote by HAVA because he lacks the documentation it requires. Compare 42 U.S.C (b)(2)(A)(i)(II) (accepting nonphoto ID that shows the name and address of the voter ), with J.A. 67 (affidavit of individual denied BMVissued ID because he did not have anything on it with proof of my address ). But that is not the test. Rather, to make out a facial challenge, it is petitioners burden to establish that no set of circumstances exists under which the Act would be valid, Salerno, 481 U.S. at 745. Because petitioners have not come close to meeting the high threshold set for facial invalidation of a legisla-

27 18 tive act, petitioners facial challenge to the Voter ID Law must be rejected. As with any statute, the Voter ID Law remains open to a proper as-applied challenge in a discrete case, Gonzales v. Carhart, 127 S. Ct. 1610, 1639 (2007), but this facial challenge lacks merit. II. THE VOTER ID LAW IS A REASONABLE ADMINISTRA- TIVE RULE THAT FURTHERS THE STATE S COMPEL- LING INTEREST IN COMBATING VOTER FRAUD A. States Have Broad Authority To Establish Rules To Ensure The Integrity Of Elections The Constitution expressly provides that state legislatures are to prescribe [t]he Times, Places and Manner of holding Elections for Senators and Representatives. U.S. Const. Art. I, 4, Cl. 1. And this Court has long recognized that States have broad powers to determine the conditions under which the right of suffrage may be exercised, Carrington v. Rash, 380 U.S. 89, 91 (1965) (quoting Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50 (1959)); Mason v. Missouri, 179 U.S. 328, 335 (1900)), and a compelling interest in preserving the integrity of [the] election process, Purcell v. Gonzalez, 127 S. Ct. 5, 7 (2006) (per curiam) (citation omitted). This authority reflects the fact that [v]oter fraud drives honest citizens out of the democratic process and breeds distrust of our government, and that [t]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen s vote just as effectively as by wholly prohibiting the free exercise of the franchise. Ibid. (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). Because States must necessarily play an active role in structuring elections to ensure that they are fair and honest * * * rather than chaos, and because

28 19 [e]lection laws will invariably impose some burden upon individual voters, this Court has stressed that a citizen s right to vote in any manner is not absolute. Burdick, 504 U.S. at 433. Likewise, the Court has held that not every voting regulation that imposes [a] burden upon [individual voters] must be subject to strict scrutiny. Id. at 432. See Clements v. Fashing, 457 U.S (1982) (plurality opinion); Bullock v. Carter, 405 U.S. 134, 143 (1972). Rather, a more flexible standard applies. Burdick, 504 U.S. at 434. Under that approach, when a state election law provision imposes only reasonable, nondiscriminatory restrictions on an individual s right to vote, the State s important regulatory interests are generally sufficient to justify the restrictions. Ibid. (quoting Anderson, 460 U.S. at 788). In contrast, when the right to vote is subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. Ibid. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). Petitioners point to the fact that Burdick mentions the extent to which [the States ] interests make it necessary to burden the plaintiff s rights, Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789), and mistakenly characterize that and similar statements as establishing a less restrictive[] alternative standard for analyzing electoral regulations. Dem. Br. 26; id. at 27 (emphasizing necessary ); id. at 41 (same). But this Court rejected that interpretation of the standard in Burdick itself, in which it characterized the dissenting opinion s test as a form of strict scrutiny analysis precisely because it faulted the State for failing to pursue less drastic means. 504 U.S. at 440 n.10. In short, because election laws invariably impose some burden

29 20 upon individual voters, heightened scrutiny is reserved only for those laws that impose severe restrictions on the right to vote. Id. at (emphasis added). B. Because The Voter ID Law Is Neither Discriminatory Nor A Severe Burden On The Franchise, Heightened Scrutiny Is Unwarranted Petitioners and their amici argue that the Indiana Voter ID law imposes any number of severe burdens on the right to vote. But as the district court found, the fact is that, [d]espite apocalyptic assertions of wholesale voter disenfranchisement, [petitioners] have produced not a single piece of evidence of any identifiable registered voter who would be prevented from voting by the Indiana law. Pet. App The Voter ID Law does not discriminate with respect to the right to vote a. Petitioners contend that the Voter ID Law should be subjected to heightened scrutiny because it has a discriminatory impact on persons in lower socioeconomic brackets. Dem. Br That argument fails on at least two counts. First, the Court has refused to recognize poverty, without more, as a suspect classification that warrants heightened scrutiny. Harris v. McRae, 448 U.S. 297, 323 (1980). And the same is true of the other groups that are alleged to suffer disparate impact of the Voter ID Law: the elderly and disabled. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000) (age); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, (1985) (mental retardation). Second, even with respect to a protected class, disparate impact alone does not trigger heightened scrutiny under the Fourteenth Amendment. Personnel Adm r v. Feeney, 442 U.S. 256, (1979); Village of Arlington Heights v.

30 21 Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426 U.S. 229, (1976). Rather, [s]trict scrutiny of a classification affecting a protected class is properly invoked only where a plaintiff can show intentional discrimination by the Government. Wisconsin v. City of New York, 517 U.S. 1, 18 n.8 (1996). Petitioners offer no evidence that the Indiana legislature harbored such an improper purpose. Petitioners contend that, notwithstanding the general rule that a plaintiff must show discriminatory intent, [u]nder the Burdick standard, election laws that exhibit * * * discriminatory effects are subject to heightened scrutiny, and must be justified as necessary to serve very substantial state interests. Dem. Br. 36. But this Court has applied the general equal protection rule to voting cases as well. As the Court recognized in Reno v. Bossier Parish School Board, 520 U.S. 471 (1996), [s]ince 1980, a plaintiff bringing a constitutional vote dilution challenge, whether under the Fourteenth or Fifteenth Amendment, has been required to establish that the State or political subdivision acted with a discriminatory purpose, id. at 481 (citing City of Mobile v. Bolden, 446 U.S. 55, 62, 66 (1980) (plurality opinion)). b. In any event, petitioners have failed to demonstrate a discriminatory impact as well. The district court found that petitioners own expert s report regarding the effect of the Voter ID Law which it found utterly incredible and unreliable, Pet. App. 60 nevertheless revealed no potential disparate impact * * * based on a voter s race or education level and only a small potential disparate impact based on income level. Id. at 70; see id. at 72; J.A. 279 (expert s deposition testimony: we could not conclude one way or the other in terms of the distinction in terms of racial categories ).

31 22 That failure of proof should be the end of the matter for purposes of determining what level of review applies. In an attempt to fill that evidentiary void, petitioners rely in this Court on studies and reports produced since the trial court litigation that have yet to be subjected to cross-examination or peer review. See Dem. Br. 12 & n.8 (citing Nov survey); Crawford Br. 15, 40 n.19, 41 n.20 (same). There is no basis to consider such extrarecord materials, but the most recent studies nevertheless undermine petitioner s assertion of disparate impact. The Cal. Tech./M.I.T. study petitioners cite as evidence of the statute s burden (Dem. Br. 34), actually states that there does not seem to be a discriminatory impact of the requirements for some subgroups, such as nonwhite registered voters. R. Michael Alvarez et al., CalTech/MIT Voting Technology Project, Working Paper #57, Version 2, at 21 (Oct. 2007) < caltech.edu/media/documents/wps/vtp_wp57.pdf>. Likewise, the one report that has been conducted looking exclusively at voting in Indiana before and after the Voter ID Law found no consistent evidence that counties that have higher percentages of minority, poor, elderly, or less-educated population suffer any reduction in voter turnout relative to other counties. Jeffrey Milyo, The Effects of Photographic Identification on Voter Turnout in Indiana: A County-Level Analysis, Report (Nov. 2007) (Milyo Report) < % pdf.> Thus, even if impact alone were sufficient to warrant applying heightened scrutiny to the Voter ID Law, there is no evidence to support a finding of such impact. 2. The Voter ID Law does not impose a severe burden on the right to vote

32 23 a. Petitioners have also failed to show that the Voter ID Law imposes a severe burden on the right to vote. It is commonplace in virtually every polling place in America that voters are asked to identify themselves before they may cast a vote. Petitioners cannot seriously take issue with a requirement that someone arriving at the polls produce some indication of identity and residence. Indiana s choice of a means to enforce such an identification requirement does not cross any constitutional line, especially in light of the commonsense reality that a photo ID requirement is familiar in numerous other facets of everyday life, and is a particularly effective means of verifying a voter s identity. The record establishes that the vast majority of Indiana s voting age population an estimated 99% possesses the requisite photo identification. Pet. App And being asked to present a photo ID as a means of verifying identity cannot be regarded as a severe burden in any legal or practical sense. Indeed, as the district court noted, presentation of photo identification is routinely required for a multitude of everyday activities from boarding a plane, entering a federal building, to cashing a check. Id. at 108. See Foti v. McHugh, No , 2007 WL (9th Cir. Aug. 28, 2007) (rejecting constitutional challenge to federal courthouse s requirement that visitors show photo ID); Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) (rejecting constitutional challenge to requirement to show ID to board an airplane), cert. denied, 127 S. Ct. 929 (2007). Federal law likewise requires any employee to show identification at the time of hire for purposes of Form I-9. See 8 C.F.R. 1274a.2(b)(1)(i), (v). The Constitution does not require that we afford less security to the important civic task of voting, especially in light of

33 24 the obvious state interest in ensuring electoral integrity. See Pet. App. 3; id. at 109. b. Nor does the Voter ID law impose a severe burden on the 1% of the voting age population in Indiana that it is assumed does not already have a photo ID. To begin with, as discussed, the fact that 1% of the State presumably faces an additional hurdle to voting as a result of the Voter ID law itself provides no basis for invaliding the Indiana statute on its face. See pp , supra. But even putting that to one side, petitioners have failed to demonstrate that the Voter ID Law imposes an impermissible burden on the at most 1% of the Indiana voters who do not already possess a photo ID. At the outset, there is no evidence of what portion of the 1% without a BMV-issued ID may have a federal government ID or already possess the documents necessary to obtain a BMV photo ID, which Indiana provides for free. See Pet. App. 106 n.75. Accordingly, it is factually impossible * * * at this juncture to conclude that the Voter ID Law s requirements impose an impermissible burden on anyone s right to vote. Cutter v. Wilkinson, 544 U.S. 709, 725 (2005) (internal quotation marks and citation omitted). As the court of appeals noted, petitioners did not identify a single plaintiff * * * who would vote were it not for the law. Pet. App. 5; id. at 101. Plaintiffs challenging other voter ID laws have likewise failed to identify such an individual. See Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th Cir. 2007) (Arizona law); Common Cause/Ga. v. Billups, 504 F. Supp. 2d 1333, 1380 (N.D. Ga. 2007) (Georgia law). Petitioners also complain (Dem. Br ; Crawford Br ) about the time, cost, and inconvenience that may be required of these voters to obtain a free photo ID from BMV. Such inconveniences, however, do not

34 25 trigger heightened scrutiny. Election laws will invariably impose some burden upon individual voters and strict scrutiny is not triggered merely because a law makes casting a ballot marginally more difficult for some voters. Burdick, 504 U.S. at 433; Kramer v. Union Free Sch. Dist., 395 U.S. 621, 626 n.6 (1969). Indeed, it is hard to imagine any election regulation that does not limit the opportunity of, or cause some inconvenience to, at least some citizens who choose to vote. A state s choice of poll locations and hours of operation will inconvenience some voters and could require them to find child care, incur transportation costs, or even miss work in order to vote in-person. Some citizens may also need to stand in long lines to vote in-person depending on where and when they go to the polls. And any identification requirement photo or otherwise will inconvenience some voters. Such routine costs and inconveniences, however, do not render a state s electoral process constitutionally defective. Petitioners maintain (Pet. App. 45) that a disproportionate number of the 1% of prospective voters without a BMV-issued photo ID are elderly, disabled and poor voters. But to the extent such voters are disproportionately elderly and disabled that fact hurts petitioners claim because such voters automatically qualify to vote absentee, see Ind. Code (a)(4), (5); and accordingly can cast a ballot by mail without obtaining any photo ID. See Pet. App Indiana law also allows an indigent person to vote in multiple ways, even without obtaining an ID. See p. 6, supra. Accordingly, because the right to vote does not include the right to vote in-person, or by any particular method, the Voter ID Law does not impose any burden on the right to vote for a majority of the 1% of Indiana voters who do not have